Supreme Court: Identity of Confidential Informer Remains Confidential

Aug. 14, 2014 – Aug. 14, 2014 – The identity of a confidential informant will not be disclosed, the Wisconsin Supreme Court has ruled, despite a criminal defendant’s motion for an in camera review of expected testimony to determine what the informant knew.

A 5-2 majority, in State v. Nellessen, 2014 WI 84 (July 23, 2014), ruled that Jessica Nellessen failed to show a reasonable possibility that the confidential informer would have “information necessary to the defendant’s theory of the defense.”

That’s the hurdle to trigger an in camera review, Justice Michael Gableman explained in a majority opinion, and Nellessen could not overcome the burden. Thus, the supreme court ruled that the circuit court properly denied an in camera review.

It all started in 2011, when Nellessen agreed to drive a car to Minneapolis and back to Stevens Point with a friend, the friend’s boyfriend and another man. Nellessen would drive them to Minneapolis to pick up one more man and drive back to Stevens Point.

When they arrived in Minneapolis, a drug transaction took place. Richard Green hid a pound of marijuana in the trunk of Nellessen’s car. Nellessen did not admit that she saw the marijuana, but she admitted smelling the odor of marijuana.

On the ride back to Stevens Point, a Marshfield police officer made a traffic stop. He said Nellessen’s rear-view mirror was obstructed. He testified that he could smell pot. He conducted a search of the vehicle and found the hidden marijuana and a scale.

The officer had been directed to stop the vehicle based on a tip from a confidential informant, who called the Stevens Point police and said Nellessen’s car was en route to Minneapolis and would be containing a pound of marijuana on the way back.

All individuals, including Nellessen, were charged with possession of marijuana as parties to a crime. Nellessen’s attorney filed a motion to suppress the evidence, and also filed a motion compel disclosure of the confidential informant’s identity.

Nellessen argued that if the defendant knew about this deal, the informant might also know whether Nellessen was an innocent bystander who was unaware of the pot.

It was Nellessen’s position that she did not know about the drugs, and the informant could support that defense. However, the circuit court denied the motion to compel on the basis that Nellessen had not satisfied the burden for an in camera review.

Majority Rules

A state appeals court reversed, concluding that an in camera review was proper under Wis. Stat. section 905.10(3)(b), which says informants can testify after a judge conducts an in camera review of the evidence provided and determines that the informant’s testimony is necessary for a fair determination of guilt or innocence.

But the supreme court reversed the appeals court, clarifying the what defendants must show in order to receive an in camera review. That statute, the majority explained, “requires that a motion to compel disclosure of a confidential informer’s identity must be grounded in the facts and circumstances of the case,” Justice Gableman wrote.

Mere speculation that the informer has information necessary for the defendant’s theory of defense is not enough, the majority opinion explained.

“If a motion grounded in mere speculation were sufficient to warrant and in camera review, a defendant would be able to obtain a hearing in every instance,” wrote Gableman, noting the exception would “swallow the rule” if the court ruled otherwise.

The majority acknowledged that a defendant cannot know the specific information that a confidential informer possesses, but the defendant must show a “reasonable possibility” that the confidential informer knows something that can help the defense.

The circuit court had ruled that it was not reasonable to assume the informer may have knowledge about Nellessen’s state of mind – that is, whether she knew marijuana was in the car when she drove it. The supreme court upheld the circuit court’s conclusion.

“Nellessen’s motion fails to articulate why or how the informer would have any knowledge of what Nellessen knew or did not know about the marijuana in her car,” Justice Gableman wrote.

Dissent

Justice Ann Walsh Bradley wrote a dissenting opinion, joined by Chief Justice Shirley Abrahamson. The dissenters said whether to grant an in camera review focuses on a different question: “whether there is a reasonable possibility that the informer’s testimony may be necessary for a fair determination of the issue of guilt or innocence.”

“By acknowledging that showing requires speculation, but determining that Nellessen’s motion was insufficient because it was too speculative the majority sets a confusing standard for courts to follow,” Justice Bradley wrote.